R v Carroll - [2010] VSCA 20

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 952 of 2008

THE QUEEN
	V
ANDREW DEAN CARROLL

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JUDGES:	NEAVE and REDLICH JJA and HANSEN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 February 2010
DATE OF JUDGMENT:	18 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 20
JUDGMENT APPEALED FROM:	R v Carroll (Unreported, County Court of Victoria, Judge Duggan, 17 December 2008)

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CRIMINAL LAW – Sentence – Appellant pleaded guilty to three counts of armed robbery, three counts of assault, one count of making a threat to kill, and one count of possessing an unregistered firearm – Total effective sentence of 5 years and 4 months’ imprisonment with non-parole period of 3 years and 9 months – Judge accepted appellant had good rehabilitation prospects and on that basis expressed intention to impose shorter than normal non-parole period – Non-parole period actually imposed did not reflect judge’s intention – Failure to comply with s 6AAA(2) of Sentencing Act 1991 – Appellant re-sentenced to 5 years and 4 months’ imprisonment with non-parole period of 2 years and 10 months.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Appellant	Ms H Spowart	Victoria Legal Aid

NEAVE JA:

I will ask Hansen J to give the first judgment.

HANSEN AJA:

The appellant, Andrew Dean Carroll, who turned 34 last week, pleaded guilty in the County Court to three counts of armed robbery, three counts of common law assault, one count of making a threat to kill, and one count of possessing an unregistered firearm, the offences arising out of three separate armed robberies committed in February, April and May 2007 in Northcote, Coburg and Taylors Lakes respectively. Following a plea in mitigation, he was sentenced on 17 December 2008 to a total effective sentence of five years and four months’ imprisonment with a non-parole period of three years and nine months. As the appellant had been in custody since his arrest on 2 May 2007 (that being 596 days of pre-sentence detention), the effect of the non-parole period fixed was that the applicant would be required to spend at least two further years in prison as from the date of sentence, his earliest possible parole release date being February 2011.

As to the circumstances of the offences, I gratefully adopt the sentencing judge’s description of events as follows:

2The first armed robbery was on 4 February 2007. Late on that evening you entered the Albion Hotel in Northcote wearing a balaclava and carrying what the people in the hotel thought to be a silver-coloured handgun. You entered the bar and pointed the gun at the manager and another staff member. You threw a green shopping bag to them and shouted to the gaming attendant that she should, ‘Put the money in the bag.’ The staff members fled from that location. You walked around the bar and took the tray of money from the register and left the premises. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Carroll

Details

AGLC: R v Carroll [2010] VSCA 20
Case: [2010] VSCA 20
Decision Date: 18 February 2010

CaseChat Overview and Summary

The appellant in this case was found guilty of multiple serious offences including armed robbery, assault, making a threat to kill, and possession of an unregistered firearm. The Court of Appeal was tasked with reviewing the sentence imposed by the lower court, which had handed down a total effective sentence of five years and four months’ imprisonment, with a non-parole period of three years and nine months. The appellant had indicated a strong likelihood of rehabilitation, leading the sentencing judge to consider a shorter non-parole period than typically warranted by the severity of the crimes committed. However, upon review, it was determined that the non-parole period imposed did not accurately reflect the judge’s intentions.

The legal issues before the court involved the application and interpretation of sentencing principles and statutory provisions. The primary concern was whether the sentence imposed complied with section 6AAA(2) of the Sentencing Act 1991, which mandates that the non-parole period should be proportionate to the seriousness of the offence. The court also had to consider the sentencing judge’s stated intention to reflect the appellant's rehabilitation prospects in the non-parole period. The court found that the sentence did not adhere to these statutory requirements, leading to an order for resentencing.

In its reasoning, the Court of Appeal emphasised the importance of accurately reflecting the sentencing judge's intentions as outlined in the statutory provisions. It held that the original sentence failed to appropriately balance the seriousness of the crimes with the likelihood of rehabilitation, thereby not conforming to the legislative requirements. Consequently, the court re-sentenced the appellant to five years and four months’ imprisonment with a non-parole period of two years and ten months, which it determined was more reflective of the judge’s original intentions and aligned with the statutory framework.

The final orders of the court involved the resentencing of the appellant. The Court of Appeal mandated that the appellant serve a total effective sentence of five years and four months’ imprisonment with a non-parole period of two years and ten months. This decision ensured that the sentence imposed was proportionate to the seriousness of the crimes while also considering the appellant’s prospects for rehabilitation, in accordance with the Sentencing Act 1991.

Orders